INTRODUCTION

In Family Law maintenance is often used as a synonym for spousal support or alimony, and the
term is in fact replacing alimony. Traditionally, alimony was solely the right of the wife to be
supported by the husband. The award of spousal maintenance is generally determined based on
all or some of the following guidelines: the recipient's financial needs; the payer's ability to pay;
the age and health of the parties; the standard of living the recipient became accustomed to
during the marriage; the length of the marriage; each party's ability to earn and be self-
supporting; and the recipient's nonmonetary contributions to the marriage.

Spousal maintenance may be temporary or permanent. The parties generally may adjust its
amount at a future date by returning to court and reassessing the relevant criteria at that time. In
some states the parties may forever waive their right to spousal maintenance by written
agreement.

Hindu sages in most unequivocal and clear terms laid down that maintenance of certain persons
is a personal obligation. Manu declared: ―the aged parents, a virtuous wife and an infant child
must be maintained even by doing hundred misdeeds. Brihaspati said, ― A man may give what
remains after the food and clothing of family: the giver or more (who leaves his family naked
and unfed ) may taste honey at first but afterwards finds it poison.‖ According to the Mitakshara,
―where there may be no property but what has been self-acquired, the only persons whose
maintenance out of such property is imperative, are aged parents, wife and minor children.

A person who involves in charity or dan at the cost of maintenance of his aged parents, infant
children and wife is condemned by the sages; it is like tasting honey which turns out to be poison
later. During the British period, it was a well established rule that the maintenance of the
aforesaid three sets of persons was a personal obligation of every male Hindu.

Maintenance can be the sole issue of a legal application and application can be made in the
District, Circuit or High Court. Interim Maintenance can be sought in the context of matrimonial
proceedings prior to the hearing by making application to the court by way of Notice of Motion.
MAINTENANCE UNDER CHRISTIAN LAW

A Christian woman can claim maintenance from her spouse through criminal proceeding or/and
civil proceeding. Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings. Section 36 of the Indian Divorce Act, 1869
(IDA) are similar to S.24 of HM ACT.

However S. 36 of IDA differs in the respect that the maintenance pendente lite and interim
maintenance can only be claimed by the wife and not by the husband. If a divorced Christian
wife cannot support her in the post divorce period she need not worry as a remedy is in store for
her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance
in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the
court may order, till her lifetime.

The Indian Divorce Act, 1869 which is only applicable to those persons who practice the
Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are
the same as those under the Parsi law and the same considerations are applied in granting
maintenance, both alimony pendente lite and permanent maintenance.

The provisions of the Indian Divorce Act, 1869, are produced herein covered under part IX -S.36
- S.38 Page 13 of 21 The power of order monthly or weekly payments: In every such case, the
Court may make an order on the husband for payment to the wife of such monthly or weekly
sums for her maintenance and support as the Court may think reasonable: Provided that if the
husband afterwards from any cause becomes unable to make such payments, it shall be lawful
for the Court to discharge or modify the order, or temporarily to suspend the same as to the
whole or any part of the money so ordered to be paid, and again to revive the same order wholly
or in part as to the Court seems fit.

Under section 38 of the Indian Divorce Act, 1869, in all cases in which the Court makes any
decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any
trustee on her behalf to be approved by the Court, and may impose any terms or restrictions
which to the Court seem expedient, and may from time to time appoint a new trustee, if it
appears to the Court expedient so to do.
MAINTENANCE UNDER PARSI LAW

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously
as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter
at all unlike the civil proceedings.

If the Husband refuses to pay maintenance, wife can inform the court that the Husband is
refusing to pay maintenance even after the order of the court. The court can then sentence the
Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so
long as he does not pay.

The Parsi Marriage and Divorce Act, 1936 speaks about the right of wife to maintenance-both
alimony pendente lite and permanent alimony. The maximum amount can be decreed by court as
alimony during Page 14 of 21 the time a matrimonial suit is pending in court is one-fifth of the
husband's net income. In fixing the permanent maintenance, the court will determine what is just,
bearing in mind the ability of husband, wife's own assets and conduct of the parties and this
order will remain in force as long as wife remains chaste and unmarried.

In case of pendent lite and interim maintenance sections 39 of the Parsi Marriage and Divorce
Act, 1936 (PMDA) is similar to S.24 of HM ACT. S.40. of Parsi Marriage and Divorce Act says
that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross
sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as
having regard to the defendants own income and other property, if any, the income and other
property of the plaintiff, the conduct of the parties and other circumstances of the case, it may
seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on
the movable or immovable property of the defendant.

The Court if it is satisfied it may, at the instance of either party, vary, modify or rescind any such
order in such manner as the Court may deem just and if the Court is satisfied that the partly in
whose favour, an order has been made under this section has remarried or, if such party is the
wife, that she has not remained chaste, or, if such party is the husband, that he had sexual
intercourse with any woman outside wedlock, it may, at the instance of the other party, vary,
modify or rescind any such order in such manner as the Court may deem just.